One of the most fulfilling and rewarding proceedings in the practice of law is to represent the petitioner(s), minor children, or birth parents through the adoption process. However, the practitioner must be scrupulous in following the statutes in the states, or countries, in which the child or prospective adoptive parents reside, as well as complying with the Interstate Compact on the Placement of Children and the Indian Child Welfare Act, when applicable.
In addition, it is advisable to speak with the adoption clerk in the county in which the petition is being filed, to ensure that you are apprised of local nuances, and thus forewarned you will avoid undue delay of an event that most petitioners are anxious to expedite.
An additional source of expertise for counsel embarking on this aspect of practice is the American Academy of Adoption Attorneys located in Washington, D.C., and the numerous adoption associations and networks which you can locate on the internet, or which are listed in the most recent micpel on the subject, entitled Adoptions after the New Rules.
In Prince George's County we are fortunate to have two knowledgeable and always helpful courthouse personnel who scrupulously ensure that the pleadings and exhibits are in compliance, and who will notify counsel when we are not following the rules. Martha Folea is Judge Platt's Administrative Assistant who reviews and administers the adoption cases and schedules the hearings. Cheryl Gibson is the official adoption clerk who maintains the records and accepts filings.
By order of the Court of Appeals dated June 5, 1996, the new adoption rules, referred to as Title 9-Family Law Actions: Chapter 100 - Adoption; Guardianship Terminating Parental Rights, took effect and applied to all such actions commenced on or after January 1, 1997. The new rules also refer you back to the Family Law Article, with respect to certain definitions, consents, and appointment of counsel.
Rule 9-102 requires the filing of the consent of certain children and birth parents before a judgment of adoption will issue. Exceptions may include the death of the natural parents; the previous revocation of the rights of the natural parents; or the verified unavailability of a birth parent. Counsel for the petitioner should arrange to have an attorney retained for the birth parents, and thus avoid any ethical or legal controversy in the procurement of the requisite consent to adoption. Provided that the birth mother and father are not in conflict, the same attorney may represent each of them. The petitioners should be responsible for all fees and costs associated with the birth parents' counsel. The consents of the natural parents should be filed with the petition, are irrevocable after 30 days from the date of their signing; and the language must be substantially in conformity with Rule 9-102. A prospective adoptive child may revoke their consent at any time prior to the judgment of adoption. The recommended consent forms are published in Rule 9-102. It is advisable for the petitioners to retain separate counsel for minor children, although the appointment is not mandatory for children younger than ten years of age (see Family Law Article º 8-31). The petitioners are responsible for the fees of the adoptee's attorney, unless counsel for the children is pro bono, or another source of funding is available.
Aside from filing fees, attorney fees and agency fees, the prospective adoptive parents may only pay for the necessary medical care and counseling for the birth mother and child. Parents, or their counsel, who engage in fostering any other subsidies or payments to any individuals involved in the adoption are subject to criminal prosecution.
A petition for adoption should be filed before the prospective adoptive child is born; however, counsel for the petitioners must acquire a custody order before the child is removed from the hospital to the home of the adoptive parents. It is advisable for counsel for the birth parents to acquire the applicable consent to adoption after the birth of the child. In addition, the attorney for the birth parents will acquire medical information, releases for each birth parent and the child; will interview each natural parent to get a complete medical history; and will acquire their signatures for other hospital forms, such as nursery admission authorization and consent to remove the child from the facility.
Many adoptive parents want to be present during the birth of the child; wish to begin bonding immediately in the nursery during feedings; and usually wish to take the child home from the hospital. Therefore, it is crucial that all the attorneys in the adoption case communicate and plan in advance to have all of the requisite forms and petitions signed, and filed, and have the necessary temporary custody order pursuant to 9-108, so that the parents' plans can be effectuated without future legal complications.
However, older children and even adults can be adopted and any person, provided they are an adult, whether single or married, may adopt. Family Law Articles 5-307 º5.
The caption on the petition for adoption must never name the adoptive child, children, or person, and is to be styled in accordance with Rule 9-103. All adoption files in the attorney's office should be handled as strictly confidential and staff should not divulge the names of the adoptive parents to anyone, except the other attorneys involved with the case. All adoption files are sealed at the courthouse, and treated with the utmost discretion and care, in terms of protecting the confidentiality of the parties involved.
It is imperative that the attorney for the petitioners draft a petition that is strictly in conformity with the minimal requirements of Rule 9-103(b)(1) Contents and (b)(2) Exhibits. The Rule specifies that the requisite exhibits accompany the petition, or else it may be rejected at the time of filing. Certified copies of documents are now required; photocopies are not acceptable. It is advisable to provide your client with a list of all the documents or records that you must attach to the petition before it is filed, and inform the client that unless it is an emergency you cannot open their case until all such documents are provided to you. If your client was advertising in any publication seeking out surrogates, birth parents or children, a copy of the advertisement must accompany the petition. You must also file a statement from a medical doctor concerning the health status of the adoptive parents, and child. In addition, a proposed judgment of adoption should accompany the petition when it is filed. In a step-parent adoption, the natural parent and the step-parent are co-petitioners. Counsel should also attach their motion and order for the appointment of an attorney for the children to the petition, if applicable, and a temporary custody order. The case is originally filed with the adoption clerk in the Circuit Court, as are all subsequent pleadings in the adoption.
In the event you are unable to acquire the requisite consents for the natural parents or children to be adopted, or if a birth parent is otherwise unavailable or if the birth parents consented to the adoption but asked to be given notice of the proceeding, the court will issue a show cause order in accordance with Rules 9-104 and 9-105, the content of which is published verbatim in the Rule.
Any person who has a right to participate in a proceeding for adoption or guardianship may file a notice of objection within 30 days after the show cause order is signed. It is imperative that you list for the court all such persons who may have an interest so that the proceedings are not disrupted later by a relative or interested person claiming lack of notice. Rule 9-107 dictates the service and notice requirements and requires that a hearing be held promptly, if the petitioner files a response. The court determines if a party objecting to the adoption has standing to inspect the file and records.
In either a contested or uncontested adoption, the court must hold a hearing, which is scheduled through the adoption clerk, not the assignment office. Rule 9-109 requires such hearings to be closed, and only the petitioner and prospective adoptive child may be present, with their counsel, unless the court deems the presence of some other person necessary or desirable. Counsel should gently remind their clients of this rule in advance, and suggest that a family celebration be arranged at a location other than the courthouse. Rule 9-109(c)(2) also sets forth the requisite findings of the court before a judgment of adoption may be granted. Counsel for the petitioners generally should elicit brief direct testimony from each petitioner in conformity with the requirements of the aforementioned rule, and verify that the contents of the petition are still current and applicable. The best interest of the child standard applies in adoptions; the court also must be satisfied that the adoptive parents are fit and proper. In agency or independent adoptions which do not involve step-parents or relatives, the petitioner must file an accounting, before the judgment is granted, in accordance with Rule 9-110, which also specifies the contents of the accounting rule.
The appellate process for adoptions, guardianships and termination of parental rights was expedited in January 1996; priorities are given to the transcripts and the briefing schedules. The oral argument must be held within 120 days after the transmission of the record, and the decision must be rendered within 60 days after oral argument or submission on the briefs.
Case law exists on a variety of issue areas which are not addressed in the scope of this limited article, and counsel should arrange to acquire, at minimum, a synopsis of the same from micpel, or one of the family law publications.
Those who wish to pursue this area of practice may want to commence by seeking appointments, on a pro bono or reduced-fee basis, as attorney for the adoptive children, or the birth parents. The various Departments of Social Services and certain agencies and organizations in Maryland are also seeking interested attorneys who are willing to volunteer their time and expertise.
